Does Common Elements mean the same thing in your Docs and in your Statute?

Here is a link to it.

That act has the following definitions:

"COMMON ELEMENTS." Common facilities or controlled facilities.

"COMMON FACILITIES." Any real estate within a planned community which is owned by the association or leased to the association. The term does not include a unit.

"CONTROLLED FACILITIES." Any real estate within a planned community, whether or not a part of a unit, that is not a common facility but is maintained, improved, repaired, replaced, regulated, managed, insured or controlled by the association.

First, let me say 'yes' to your question. Under CIOA Common Elements in our Docs mean the same as it does in the state Statutes.

However, I found the topic quite interesting and hope others will chime in. I live in a Condo Assoc. organized under the CIOA. As unit owners each one of us owns a free standing house with approximately 7000 Sq. feet of land. We also own an equal share in the Common Property (Common Elements). The Assoc. is responsible for lawn care and snow removal regardless of whether it's on Common property or unit property. The Assoc. carries insurance on the common property only. Each unit owner is required to carry Homeowner's Insurance on their property.

Currently there is a move on to change our Declaration to require the Assoc. to be in control and responsible for all property except the interior of our homes. The membership seems split and it has become a contentious issue. A majority of the owners thought that's what they were buying anyway.

After reading up on Controlled Facilities it appears that's what we will become if the proposed changes to the Declaration are passed. I can't find anything in CIOA of Ct. that addresses this. First off, it seems to me the Assoc. would have to carry insurance on all the units otherwise all the unit owners could become responsible for any insurance claims arising out of any law suits for damage or life that occurs at another property.

Comments please.

PS: All of the above exclusive use common areas are deeded to individual condos

Thanks all. I too find the topic fascinating and would like to see where we can take this conversation. I am especially interested
in the similarities and differences under different statutory structures in your states.

Let me start by providing a few more definitions that you can find in the PA code that Tim appended to his post:

"LIMITED COMMON ELEMENT." A limited common facility or a limited controlled facility.
"LIMITED COMMON FACILITY." A portion of the common facilities allocated by or pursuant to the declaration or by the operation of section 5202(2) or (3) (relating to unit boundaries) for the exclusive use of one or more but fewer than all of the units.
"LIMITED CONTROLLED FACILITY." A portion of the controlled facilities, other than controlled facilities which are themselves part of a unit, allocated by or pursuant to the declaration or by operation of section 5202(2) or (3) (relating to unit boundaries) for the exclusive use of one or more but fewer than all of the units.

These definitions go even further than my original post by adding the condition that Common Elements, Common Facilities, and Controlled Facilities may be designated for limited use by less than all of the members.

Kerry, you asked what changes our board might make given the extended reach. For us, the one area I can think of is trees. Our property was overplanted by the developer with cheap, fast growing trees nearly 30 years ago. The HOA prunes and removes trees. Over the last 3 years, we have reduced our tree inventory by nearly 25%. We hired an arborist and a landscape designer who advise us, but the board decides what actions to take (as always with input from our HOs).

There are 4 areas where we can get HO pushback:

1. When a tree is designated for removal, we allocate a portion of the cost to one or more HOs if the tree is within 15' of the footprint of their houses. We use this 15' rule of thumb because we have no way to distinguish between common ground and private ground. If HOs want to challenge that a tree within 15' is not on their private property, they can have a survey done at their own expense - if correct, the HOA will absorb the entire cost of tree removal. (Never really happens because the cost of a survey would probably be more than their portion of the tree removal cost).

Applying the statutory regime, I would say that we are treating these trees as Limited Common Elements without distinguishing whether they are Limited Common Facilities or a Limited Controlled Facilities. Note that the statute does allow costs to be allocated to the specific beneficiaries of the Limited Common Elements and not across the entire community (Statute defines it as a "Limited Common Expense").

2. When HOs do not want a tree removed, they will generally rely on our 15' rule of thumb to claim ownership. Some will get their own arborist to say that the tree does not require removal. But of course their arborist is looking only at a single tree and not making an evaluation of our entire tree inventory and how we can accomplish our community-wide revitalization efforts.

Applying the statutory regime, our position here would be that if the tree is in fact on private property, it would be a Controlled Facility merely because we have been maintaining it at HOA expense for decades.

3. Sometimes next-door neighbors disagree on whether a tree that is within 15' of both of their homes should be removed. One says the tree is dangerous. The other says we have an obligation to prune the tree to his satisfaction. Some of these conflicts have bogged us down for a year.

Applying the statutory regime, we would have a legal basis to make the appropriate judgment call without having to deal with two HOs claiming that the tree is on their land.

4, After reducing our tree inventory, we will begin the process of planting new appropriate sized trees this coming year. We have already begun to receive HO comments that our plan for the community favors some lots and not others.

We haven't thought through the implications of how we might apply the statutory regime under these circumstances.

I doubt that we will present this statutory regime to our community, not because we want to hide anything, but because we think it will go over the heads of most of our residents who come to meetings. For those who don't attend (the majority), I think we would confuse rather than clarify, which we don't want to do. On the other hand, we would like to have a clearer picture for ourselves of how we might apply the statute.

Very interested in hearing more from the rest of you not just about my situation but also yours.

Thanks Bob

1. Lack of monumented survey boundaries. We believe that we are covered on this if we take the position that these are Common Facilities if on land owned by the HOA and Controlled Facilities if on land owned by an individual HO. And we take the Controlled Facility position because the responsibility for maintenance falls on the HOA.

Our position is not that we are cutting unless you can prove trespass. Our position is that we are cutting if our arborist considers this tree to be at-risk based on the size of the tree, its health, its proximity to the houses, and our current pruning practices. (Under our current pruning practices, we no longer prune a tree every 3 years. We push it to 6 if we can.) We think that the statutory existence of the Controlled Facility designation gives us this capability.

2. How many layers. Good point. However we have a different can of worms to worry about. While we are comfortable that the perimeter boundaries of our community are accurate, the developer didn't do such a good job on the location of houses. As built, any interior boundary line may be off by as much as 5' in any direction. It could be that a house is partially build on HOA-owned land or another HOs lot. We aren't interested in finding out if we don't have to. Even so, we think that the concept of Controlled Facilities allows us to circumvent those hugger-cutter disputes by putting the decision in the hands of the HOA. This is the "extended reach" of the statute that I was referring to in my earlier post.

We are not that certain how, under the statute, to characterize our new tree plantings. Unlike tree removals which are now in their third year, tree planting are about to begin. Would appreciate your thoughts.

NPS

Under your arrangement who carries insurance on The Controlled Facilities that are owned by the unit owner?

Helene

Better to start a new pst, Peg--this on's very old.

say, I miss NpS.